Reasonable adjustments: Have you gone far enough?

Before starting a formal capability process employers should carefully consider whether reasonable adjustments have been properly explored.

When should employers consider reasonable adjustments?

There are several situations where reasonable adjustments may need to be considered, including when an employee is on, or returning from, long-term sickness, an employee has disclosed a disability or is struggling with their role because of a physical or mental health condition.

Employees can also request changes to their role, working arrangements or environment, and, equally, employers do not have to wait until a capability process is underway before considering adjustments.

The duty is to take such steps as are reasonable to avoid a disabled employee being placed at a substantial disadvantage. Employers should consider factors including whether an adjustment would reduce the disadvantage, whether it is practical, the costs and resources involved and the impact on the organisation, colleagues and service delivery. These factors need to be genuinely explored and evidenced.

Lessons from a recent Employment Tribunal case

A recent Employment Tribunal case involving an employee with mental health conditions provides a useful reminder that employers need to look beyond the adjustments they have already made.

The employer had temporarily reduced the employee’s hours, arranged a phased return, provided additional breaks and check-ins and offered some flexibility around different types of customer contact.

However, the Tribunal found that the employer had not gone far enough. The employee had requested longer-term changes, including less telephone work, more chat and email work, greater consistency in her rota, compressed hours and additional support when procedures changed.

Although the Tribunal did not uphold every aspect of the employee’s claim, it found that the employer had failed to make reasonable adjustments that could have reduced the disadvantage caused by her disabilities.

What about fairness to the rest of the team?

Managers can understandably worry that making adjustments for one employee will appear unfair to colleagues. However, equality does not always mean treating everyone identically.

Instead of simply asking, “Is this fair to everyone else?”, employers could ask: “Can we make this change without causing an unreasonable impact on the organisation, colleagues or service delivery?”

Look beyond the phased return

A phased return can be valuable, but employers should also consider what happens when it ends. It is recommended that employers listen to the employee’s experience rather than assuming they know what is best for them. An employee may, for example, request compressed hours because a regular day away from work helps them manage their condition, even if the remaining days are slightly longer.

There is no one-size-fits-all approach and the individual’s experience should be considered alongside medical or occupational health advice and the practical requirements of the role.

If a temporary adjustment has enabled an employee to return successfully, could it continue longer term? If not, employers should be clear about why.

Before moving towards capability

Before commencing a capability process, employers should ensure they have recorded the employee’s particular disadvantage, each adjustment considered and whether it was trialled as well as the employee’s views, which adjustments were implemented or declined and the reasons for those decisions.

Employers do not have to agree to every request. However, they should be able to demonstrate that requests were genuinely considered and, where declined, provide clear and evidenced reasons.

Employers should consider if they have properly explored what this individual needs to work successfully and sustainably.

If you have any further questions relating to HR for your business, contact Monahans to see how we can help.